Reply Brief — Moritt v. Extraordinary Special & Trial Term of the Supreme Court, County of Kings

Supreme Court, ¥. , :

FILED S

NOV 24 1875

4

Ix THE

aon

Supreme Court of the Anited States

OCTOBER TERM, 1975

No. 75-648

IN THE MATTER

OF

FRED G. MORITT,

Appellant,

-against-

EXTRAORDINARY SPECIAL AND TRIAL TERM OF THE

SUPREME COURT, COUNTY OF KINGS, HON. JOHN M.

‘ MURTAGH, as Presiding Justice of the Extraordinary Special

and Trial Term, HON. MAURICE H. NADJARI, as Special

Deputy Attorney General, LOUIS J. LEFKOWITZ, Attorney

General of the State of New York,

Appellees

On Appeal from the Supreme Court of the State of New York,

Appellate Division, Second Judicial Department

BRIEF ON BEHALF OF APPELLANT OPPOSING

MOTION TO DISMISS OR AFFIRM APPEAL.

AARON NUSSBAUM

Counsel for Appellant

16 Court Street, Suite 1505

Brooklyn, New York 11241

1. EDWARD POGODA

Of Counsel

50 Court Street

Brooklyn, New York-11201

a en an ae a ee a

Dick Bailey Printers, 290 Richmond Avec., Staten Island

New York 10302

»

-_

-*

TABLE OF CONTENTS

Page

i an 6 ceases le chee ange cemene at 1

I oi on cannes egnusedhvesces shuaen ee 2

DT ic andekiess ban become 6404 cu uhen abene dian 2

I a Ni a ik i eas 2

Ee oe el tn cadenh i enedeuunen 2

65 66:06 666d S6R REO EES 6600805 000s CEN SEROUS 4

BO Fe ee PI eucenn ets ccescccncssseces 4

The Article 78 Proceeding—The Order Appealed From .. 7

POINT I—Section 149 Judiciary Law, subd. 1 and Art. 6,

Sec. 27 of the New York State Constitution, are facially

unconstitutional as violative of the independence of the

judiciary and the Separation of Powers guaranteed

against encroachment by the Due Process Clause of the

Constitution of the United States and Article 1, Sec. 6

New York State Constitution.

POINT Il—Section 149, Subdivision 2 of the Judiciary Law,

in substantially diminishing the rights of litigants before

the Extraordinary Term, is unconstitutional and void on

its face, as inherently violative of the equal protection of

the laws and due process of law. ...........5-00e0ee: 17

ii |

Page | ll

POINT II1I—The Governor's specific designation of the | City of St. Petersburg v. Alsup, 238 F.2d 830, cert. den.

appellee Nadjari to manage and conduct all proceedings | SE ie ttbadesdededeedenpundsscenekeonecpeanes 25

in the Extraordinary Term of the Supreme Court ren-

dered Section 63 Executive Law and Executive Order Crew Levick Co. v. Comm. of Pa.,

No. 58 unconstitutional and void, as applied, nder the I Ad 0es a ib pde RT scUOK di didnge ve nuns 28

due process clause of the Constitution. .............. 21

Dept. of Banking v. Pink, 317 U.S. 264, 268 .............. 29

POINT I1V—Tiie Indictment Is Unconstitutional And Void

ID io hecedbdeicescescennses sopecees 25 Dreyer v. Illinois, 187 US 71, 84 (1902) ....... 00. cee ee ees 16

POINT V—The Constitutional Questions Presented In This Dunn & Bradstreet, Inc. v. City of New York,

Appeal Are Substantial. ......-..-.0--00-seeeeeees 28 SE SANTI eid tcctaniceesnenpeccesccocs 9

ID 06.000 bs cwicsendncesesvttenscesccocsongans 30 Farmer Grain Co. v. Langer, 273 F.Rep. 635, 647

Se tech atid sniemnisddbiisthe co haneene st 10, 1S

CASES CITED Field v. Boyle, S03 F2d 774 (1974) oo... .. cece ceuecceuuees 25

Page Gospel Army v. Los Angeles, 331 U.S. S43, S48 ............ 29

Appleby v. City of New York, 271 U.S. 304 .....-..+++++++: 2 | Guaranty Trust Co. v. Blodgett, 287 U.S. 509 ...........4. &

Arizona Employer Liability Cases, 250 US 400 ..........-.. 28 | Holohan v. United States, 294 U.S. .... 0.6.0 cece ce ences 12

Bouie v. Columbia, 378 U.S. 347, 353 (1964) ..........055- 26 | Hunter v. New York. Ont. & West RR Co.. 116NY615 ..... 22

Brookhart v. Janis, 86S. Ct. 1245 6... cee cece e eee eee 6 | In re Murchison, 349 U.S. 133 (1965) .......... 00 eee eee ee 13

|

Brooklyn Savings Bank v. O'Neil, 324 U.S. 697 ............ 29 Kovarsky v. Housing & Development,

| 31 NY2d 184, 286N.E. 2d 882 ...... 2... ce eeee cece eee ees 9

Bronston v. United States, 409 US 352 ...... 0... ce cece eee >.

Lopez v. Nadjari, U.S.D.C., E.D.N.Y. 1974 .............. 23

I . , DN I og oc oc cc ccccccscccevccosecs 6

Love v. Fitzharris, 460 F2d 382, vacated 409US 1100 ....... 26

Calder v. Bull, 3U.S. 386(1798) .... 0... ccc cee cece eee 26

Malinski v. New York, 324 U.S. 401,419 ............0005. 25

iv

Matter of Goldman, Misc. 2d——(197S) .... ........ 14

Matter of Guden, 171 N.Y. 529,531 ............ Prrrrrre 12

Matter of Hogan v. Court of General Sessions,

hb voce Ra he dee aS Nd eben bi oksn66sscedenn ene 9

Matter of Klein v. Murtagh, 44 App. Div. 2d

SP POPE ix ode nttk ahve teks ditecdcéacsscbenss 23

Matter of Moritt v. Nadjari, 4 App.Div. 2d 784 (NY 1974) ...6

Matter of Reynolds v. Cropsey, 241 N.Y. 389 ............ 9,12

Matter of Spindel v. Dudley (unreported), Supreme

Court, New York County, New York Law Journal,

PS EE. 5-62 su bh oSRUbs ku batccebsewncieese d¢dyee hs 27

Matter of Wendell v. Lavin, 246N.Y.115,123 ... ........ 12

Montana Co. v. St. Louis Mining & Co., 152 U.S.100 ...... 11

Moritt v. Nadjari, et al.——F .Supp. August 27. 1975 ...19

NAACP v. Alabama, 377 U.S. 288, 307 ......... ‘eessanes 1S

PAS G TS ED Ch cand bvéscdeccddccecceces 29

A. PS Fe ln a on 6d Oe s 0 bd Se peddnsc vovucetes 12

Gali 0. Aagt, BOTs obi ccc vsdccccccscesecces 29

Offutt v. United States, 348 U.S. 11, 99

Mie OE, FRE OO 08 68 ar eda e ives ccs Coots ocdédvesveune 14

Fuagte v. Diet GOR GOO cicdeciicivcadencosvccess 15

- ee

Vv

People ex rel Burby v. Howland, 1SS N.Y. 270, 288 ......... i2

People v. Bell, 4S App. Div. 2d 362, 364 .......... 0. cc eee 14

People ex rel S.L. & T. Co. v. Extraordinary Term,

SSE -didkuaseunstedbaeucepucsbateceuecesis 9, 12, 13

People v. Geller, ——-Misc. 2d——, New York

BUNS, CROP. OG, SPREE no cccrciceccccvccdicoceccoce 14, 23

People v. Harding, 33 App.Div. 2d 800 (1974) ...........5:. i4

People v. Johnson, 46 App. Div. 2d 123, 127 (1975) ...... 14, 23

People v. Klinck Packing Co., 214 N.Y. 121,

PPE 86. 06.00 560csesb se sevcncentoouenseus cece il

People v. Levy, ——App. Div. 2d (1975) ........ cece ee eeee 14

People v. Mackel, ——App.Div.2d——-{1975) ....... 7.14, 23

People v. Nigrone, 46 App. Div. 2d 343 (2d Dept. 1975) ..... 23

People v. Steinman, 44 App. Div.

PPS DET Svbecnpontasccecnsasecsocnensess 23

People v. Whitridge, 144 App. Div. 493

SCM 6666 ebb ecncecccenvaceesedsonvesesoeces 29

Providence Bank v. Billings, 29 U.S. 514, 7 L.Ed. 399) ...... 10

Rao v. Nadjari, —— F Supp ——,

USE, SEPT. F. GPGRSROE S, TOTRD nn cc cere scccaccccccccs 24

Richfield Oil Corp. v. State Board, 329 U.S.69,72 ......... 29

Roller v. Holly, 176 U.S. 398, 409, 44 L. ed.

PEGE Kos vccevesctccccccgveseveseoedconscecé 18, 20

|

vi vii

Rosalsky v. State, 2S4 N.Y. 117 (1930) 2... .. ccc cece eens 11 | POs Ce ME EN oitniec'c bobs dc cece eeveeedus 24

Samuels v. Mackell, 401 US 66 ..........000eeeeeeeeeees 24 | Zucht v. King, 200US 174,177 oo... cece cc cececuceuueees 28

Sands v. Wainwright, 491 F. 2d 417 (CAS, 1973) .......... 24 Statutes Cited

Socha v. Smith, 2ANY 24400 2... ccc ccc cece eee eee 9 Section 149, subdivisions 1 and 2, Judiciary Law of

RS RS LE ne DE ee 2

Steffel v. Thompson, 415 US 482, ff. 7, (1974) .........006. 24

Article 6, Section 27 New York State Constitution ........... 2

Selb v. Carmina, 196. Y.. 207, TOS ccc ccccccccccccvccceces 11

Section 63 Executive Law of the State of New York .......... 2

Stuart v. Palmer, 74N.Y. 183,189 ...........0000: 11, 15, 17

Article 6, Sec. 28 New York State Constitution .............. 2

United States v. Archer, 486 F.2d 670 (CA2) ...... 00 e eens 23

United States v. Brown, 381 U.S. 437 (1965) .......... 005. il Other Authorities

United States ex rel. Monty v. McQuillan, 385 Rule 751.5 Supreme Court Rules, Kings County ........... 18

F.Supp. 1308 (EDNY 1974), affd.

EN i dine cubes cgneenkedns eaaasa 1S Civil Practice Law and Rules, Article 78

(McKinney's Consolidated Laws of New York, Book 7B) ..... 9

United States v. Lardieri, 497 F.2d 317 . 1... 0. cc cece eee eeee 5

Cooley's Constitutional Limitations, 8th ed.

United States v. Nill, $18 F2d 793CA5S,1975 .........0055 26 VOl. 1, Po BSS once cece e cece eee ncneeeseeeeecereeeeences 12

United States v. Walter, 473 F.2d 136 (CA, D.C. (1972) ..... 14 Declaration of Independence, July 4, 1776 ..............5. 15

Westervelt v. Grams, 12 F.T BB TE oc ccccccccccccccccceses 6

Wilcox v. Royal Arcanium, 210 N.Y.370,377 ......000 eee 29

Williams v. United States, 179 F.2d 644, aff. 341 US 70 ..... 26 |

Wong Yong Sung v. McGrath, 339 U.S.33 2... ccc ee ee ees 6

In THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-648

IN THE MATTER

OF

FRED G. MORITT,

Appellant,

-against-

EXTRAORDINARY SPECIAL AND TRIAL TERM OF THE

SUPREME COURT, COUNTY OF KINGS, HON. JOHN M.

MURTAGH, as Presiding Justice of the Extraordinary Special

and Trial Term, HON. MAURICE H. NADJARI, as Special

Deputy Attorney General, LOUIS J. LEFKOWITZ, Attorney

General of the State of New York,

Appellees.

On Appeal From The Supreme Court

Of The State of New York, Appellate

Division, Second Judicial Department

BRIEF ON BEHALF OF APPELLANT OPPOSING

MOTION TO DISMISS OR AFFIRM APPEAL

Preliminary Statement

This brief is respectfully submitted in support of appellant's

Jurisdictional Statement heretofore filed, and in opposition to

appellees’ motion to dismiss or affirm the within appeal.

OO,

Decisions Below

The judgment of the New York Supreme Court of the State of

New Yor’ Appellate Division, Second Judicial Department,

entered December 27, 1975, is reported in 46 App. Div. 2d 1012.

The order and memorandum decision of the New York Court of

Appeals, dismissing the appeal taken as of right on con-

stitutional grounds, entered June 4, 1975, is reported in 36 NY

2d 911. The order of the New York Court of Appeals denying

reargument, aid the order denying leave to appeal, both entered

September 10, 1975, are as yet unreported.

Jurisdiction

Notice of appeal to this Court was duly filed in the New York

Supreme Court, Appellate Division, Second De>artment, on

September 29, 1975.

The jurisdiction of this Court to review this fina) judgment by

direct appeal is conferred by Title 28 United States Code Sec.

1257(2).

Statutes Involved

The state statutes involved, as set forth in the Jurisdictional

Statement, are as follows: Section 149, subdivisions 1 and 2,

Judiciary Law of the State of New York; Article 6, Section 27

New York State Constitution; Section 63 Executive Law of the

State of New York, as applied; Article 6, Sec. 28 New York State

Constitution, as applied (App. B, pp. 34-42).

Questions Presented

1. Is a state statute and constitutional provision, authorizing

the governor to create and appoint an extraordinary term of the

supreme court and to designate the special justice who shall

preside therein—and further empowering the governor to ter-

minate the assignment of such justice at will, and at any time,

and to designate another justice in his place—facially violative of

the independence of the judiciary and the Separation of Powers

a a cc et ste

guaranteed against encroachment by the Sth and 14

th -

ments of the Constitution? Amend

2. Is a State statute which substantially diminishes the

substantive procedural rights of all litigants in the appellee

Extraordinary Term Court, by requiring that all preliminary

motions and pre-trial proceedings be brought exclusively in such

court, before a judge specially designated by the Governor, and

summarily removable at the will, whim or ca price of the

Governor, and which further prescribes that in the alternative

in the exercise of discretion by a justice of the appellate division

of the Supreme Court, such pre-trial motions may be entertained

by the appellate division, facially violative of the equal protection

of the laws guaranteed under the Sth and 14th amendments of

the Constitution, as compared to the unrestricted pre-trial

procedural rights accorded all other litigants in the regular

criminal terms of the Supreme Court?

J. Where a state statute expressly requires that the in-

dependently-elected constitutional office of the Attorney General

of the State of New York appear in person, or by one of his

deputies, before the Extraordinary Term of the Supreme Court

to manage and conduct all proceedings therein, may the

Governor constitutionally dictate the choice and personally

designate a special prosecutor to manage and conduct all

proceedings in the appellee Extraordinary Term of the Supreme

as pnts sm ag where the presiding justice thereof was

wise personally designat i

ep yaorer- 7 ae ed by and was summarily removable

4. Isa State prosecution void as ex post facto where it in-

trudes into the special relationship and personnel practices

between a judge and his lawfully appointed personal assistant

exclusively within the jurisdiction, domain and supervision of the

administrative board of the state's unified court system, as

specifically mandated by the state statute and the New York

State Constitution, upon which appellant and all other judges

within the state’s unified court system have traditionally relied?

4

Statement

The Pre-Trial Proceedings

On September 19th, 1972, the Governor of the State of New

York issued Executive Order No. 58 (App. B), (9 Officiai New

York Codes, Rules and Regulations, Sec. 1.58) pursuant to the

authorization of Section 149 of the Judiciary Law of the State of

New York and Article 6, Section 27 of the New York State

Constitution, and Section 63 of the Executive Law of the State of

New York, establishing an extraordinary special and trial term

of the Supreme Court in and for the County of Kings of the State

of New York, requiring the selection of a special grand jury for

said term, and directing the appellee Attorney General of the

State of New York, in person or by one of his deputies, to in-

vestigate and prosecute all corrupt acts committed by public

servants arising out of, relating to or in any way connected with

the enforcement of law or administration of criminal justice in

the City of New York (App. B)

On October 13th, 1972, the Governor issued Executive Order

64 (9 N.Y.C.R.R. 1.64), designating and appointing the ap-

pellee Hon. John M. Murtagh, as Justice of the Supreme Court

of the State of New York, to preside over the Extraordinary

Special and Trial Term for the County of Kings and to cause to

be drawn a jury to serve at the said Term (App. B).

Appellant was a Judge of the Civil Court of the City of New’

York, having served since 1957 as a member of that Court. His

law secretary, officially designated as a personal assistant, was

one Theodore Mann, a . uly qualified attorney at law, who was

appointed on September 1, 1972.

On April 17, 1974, appellee Nadjari filed an indictment in the

Extraordinary Special and Trial Term of the Supreme Court,

County of Kings, charging appellant with the alleged crimes of

conspiracy in the third degree, grand larceny in the second

degree, perjury in the first degree and tampering with a witness.

In substance, the conspiracy and grand larceny counts, of

which Mr. Mann was separately indicted, was that the latter had

“performed little or no work’’ as law secretary to Judge Moritt

from September 18, 1972 to January 24, 1974.*

Under the laws of New York, all personnel practices, in-

cluding appointments, discharges, leaves of absence, sick leaves,

vacation and time allowances, etc., of all non-judicial personnel

of New York’s unified court system are exclusively controlled

and regulated, and are within the sole jurisdiction of the ad-

ministrative board of the Judicial Conference of the State of New

York (Article Vi, Sect. 28 of the Constitution of the State of New

York; Section 212 Judiciary Law, sub. 1 (App. B) ).

The conclusive fact is that no rule, regulation or order had

been promulgated by the administrative board which did in any

way restrict the total and exclusive supervision exercised by the

judges over the personnel practices of their law secretaries or

clerks within the unified court system of the State of New York.

Subsequent to the filing of the indictment, on July 3rd, 1974,

pursuant to Section 149, subd. 1, Judiciary Law (App. B) ap-

pellant was granted the discretionary permission of a Justice of

the Appellate Division of the Supreme Court to apply to that

Court for pre-trial relief to dismiss the indictment on several

constitutional and jurisdictional grounds. Among the relief

requested was a motion to dismiss the indictment on the ground

of the prosecutorial misconduct of appellee Nadjari in wilfully

suppressing vital and material evidence before the grand jury

which would have completely exonerated appellant of the un-

*As to the baseless perjury and tampering counts, relating to a

statement purportedly made by Judge Moritt to Mr. Mann's law

clerk, that “defendant swore falsely when he testified that he had

at no time told anyone that he knew the names of a half-dozen

Judges’ secretaries who never report to work’, the obvious fact is

that it would have been physically impossible for Judge Moritt to

have known of his own knowledge whether other judges’ secretaries

“never report to work.” Moreover, no proper foundation had been

laid therefor before the grand jury and Judge Moritt’s testimony had

been wrongfully elicited for the sole purpose of laying the

groundwork for a “perjury” prosecution rather than to discover the

truth (Bronston vy. United States, 409 US 352; United States v.

Lardieri, 497 F.2d 317).

founded charges contained in the indictment. In addition,

appellant moved to dismiss the indictment on the ground that

the evidence adduced before the grand jury did not constitute a

crime.

On November 12ta, 1974, the Appellate Division denied the

appellant’s original application for pre-trial relief’, including the

aforesaid motions to dismiss the indictment. No oral argument

was permitted by the Court although duly requested by ap-

pellant. (Maier of Moritt v. Nadjari, 46 App.Div. 2d 784 (NY

1974). In its opinion, the Court stated in part:

‘In connection with the substantive attack made on

the various counts of the indictment, we have examined

the Grand Jury minutes. While the theory underlying

the charge of grand larceny is thin and the proof in

regard thereto quite tenuous, they are nevertheless

sufficient to require a denial of the defendant’s motion

to dismiss.

We have considered the other contentions raised by

the defendant and find them to be without merit.”’

The said order of the Appellate Division was not directly

appealable under New York law.

On November 27th, 1974, appellant moved for re-argument

upon the specific ground that the denial on the merits of ap-

pellant’s petition to dismiss the indictment for gross

prosecutorial misconduct, without a full-scale factual hearing,

and without opportunity to argue, was violative of his right to

due process of law, and to the equal protection of the laws.

(Westervelt v. Gregg, 12 N.Y.2d 202; Wong Yong Sung v.

McGrath, 339 U.S. 33; Burgett v. Texas, 389 U.S. 109). On

December 27th, 1974, the Appellate Division denied

reargument.

Subsequently, during the pendency of appellant’s case before

the Extraordinary Term of the Supreme Court, appellant moved

the Appellate Division to amend its original order of November

12th, 1974, so as to provide that the denial on the merits,

7

without a hearing, of his motion to dismiss the indic:ment in that

Court, be “without prejudice to re-consideration and renewal

thereof by the Extraordinary Special and Trial Term of the

Supreme Court”. On May 14th, 1975, the Appellate Division

denied appellant’s application to amend.

Again, on January 15, 1975S, the Appellate Division denied

appellant's motion for renewal and reconsideration of his

motions to dismiss the indictment, filed upon the specific

documented ground that appellee Nadjari had publicly

acknowledged on December 18, 1974 that the employment by a

judge of an alleged ‘‘no-show’’ law secretary “did rot constitute

an indictable crime’, and that ‘‘we need new legislation for

that.’

Thereafter, as required by the Criminal Procedure Law of New

York, Sec. 255.20, appellant filed a series of omnibus motions in

the Extraordinary Term of the Supreme Court as follows: To

dismiss the indictment on the ground that Section 149 of the

Judiciary Law is inherently void on its face, and Section 63 of the

Executive Law, as applied, under the Due Process clause of the

Constitution; to dismiss the indictment in the interest of justice

for gross prosecutorial misconduct shocking to the conscience

violative of due process of law; to dismiss the indictment as

unconstitutionally ex post facto and selectively discriminatory in —

nature under the Due Process Clause of the Constitution; to stay

all proceedings pending final determination of the constitutional

issues raised herein.

The Article 78 Proceeding—The Order Appealed From

Subsequent to the original proceeding instituted in the Ap-

pellate Division under Sec. 149 of the Judiciary Law, as

aforesaid, on November 25th, 1974, appellant instituted a

special proceeding in the Appellate Division, Second Judicial

Department, of the Supreme Court of the State of New York, for

an order under Article 78 of the Civil Practice Law and Rules, to

prohibit the appellees from proceeding with the trial, of the

indictment, and for dismissal of the indictment under the Sth

and 14th Amendments of the Constitution of the United States,

and Article 1, Sec. 6 of the New York State Constitution, upon

the following grounds:

1. That the statute under and by which the appellee Ex-

traordinary Special and Trial Term of the Supreme Court was

convened, to wit, Sec. 149, subd. 1 of the Judiciary Law of New

York, is unconstitutional and void on its face as inherently

violative of the independence of the judiciary and the Separation

of Powers guaranteed against encroachment by the Due Process

Clause of the federal and state constitutions.

2. That the same statute, Sec. 149 of the Judiciary Law of

New York, subd. 2 thereof, is unconstitutional and void on its

face, as inherently violative of appellant’s right to procedural

due process and to the equal protection of the laws under the

Constitution.

3. That the appellee Nadjari, unconstitutionally misapplied

the state's penal laws by illegally usurping the exclusive

jurisdiction vested in the administrative board of the Judicial

Conference of the State of New York over the administrative

supervision of the unified court system, as provided in Article 6,

Sec. 28 of the New York State Constitution, and Section 212 of

the Judiciary Law of the State of New York, rendering the in-

dictment against appellant invalidly retroactive, in violation of

the Sth and 14th Amendments and Article I, Sec. 9 of the

Constitution of the United States forbidding ex post facto

enforcement of the criminal laws.*

Under New York Law, an Article 78 proceeding is an ap-

propriate vehicle for contesting state action on jurisdictional or

constitutional grounds (Matter of Hogan v. Court of General

Sessions, 296 NY 1, 8; People ex rel. SL & T Co. v. Ex-

traordinary Term of Supreme Court, 220 NY 487; Matter of

Reynolds v. Cropsey, 241 NY 389; Kovarsky v. Housing &

Development, 31 NY2d 184, 286 N.E.2d 882; Dunn & Brad-

street, Inc. v. City of New York, 276 NY 198, 11 N.E.2d 728:

*The petition further contended therein that the appellee Nadjari

usurped jurisdiction in that his authority to act was strictly limited

to the criminal justice system in the City of New York, by the

requirements contained in the Governor's Executive Order, and that

the acts charged against appellant were in no way connected with

the criminal justice system or the enforcement of law. The

construction of a state statute is not reviewable in this court

(Guaranty Trust Co. v. Blodgett, 287 US. §09).

Socha v. Smith, 24 NY 2d 400; Civil Practice Law and Rules,

Article 78 (McKinney's Consolidated Laws of New York, Book

7B).

The Article 78 proceeding aforesaid was instituted in the

Appellate Division as an original proceeding by mandate of New

York's Civil Practice Law and Rules, Section 506(b)(1), which

requires that an Article 78 proceeding against a respondent

Justice of the Supreme Court must be initially instituted in the

Appellate Division, rather than in the State Supreme Court.

Again, no oral argument was had or permitted on appellant's

Article 78 petition.

On December 24, 1974, the Appellate Division dismissed the

petition “on the merits”, without opinion, (App. A), resulting in

the Judgment appealed from herein.

POINT I.

SECTION 149 JUDICIARY LAW, SUBD. 1 AND

ART. 6, SEC. 27 OF THE NEW YORK STATE

CONSTITUTION, ARE FACIALLY' UN-

CONSTITUTIONAL AS VIOLATIVE OF THE IN-

DEPENDENCE OF THE JUDICIARY AND THE

SEPARATION OF POWERS GUARANTEED

AGAINST ENCROACHMENT BY THE DUE

PROCESS CLAUSE OF THE CONSTITUTION OF

THE UNITED STATES AND ARTICLE 1, SEC. 6

NEW YORK STATE CONSTITUTION.

Section 149 Judiciary Law, subd. 1, provides:

Sec. 149. Governor may appoint extraordinary terms

and name justices to hold them.

‘1. The governor may, when in his opinion the public

interest requires, appoint one or more extraordinary

special or trial terms of the supreme court. He must

designate the time and place of holding the same, the

name the justice who shall hold or preside at such term,

and he must give notice of the appointment in such

manner as, in his judgment, the public interest requires.

The governor may terminate the assignment of the

10

justice named by him to hold a term uppointed pursuant

to this section, and may name another justice in his

place to hold the same term.” (italics ours)

The substantially identical counterpart of Secticn 149

Judiciary Law, namely, Article 6, Section 27 of the New York

State Constitution, was adopted on November 7, 1961, eff.

September 1, 1962. In Aaec verba, it incorporated into the

Constitution substantially the same provisions of Section 149,

subd. 1, Jucliciary Law, as aferestated. (App. B, p. 34).

Significantly, there appears to have been no legislative debate,

Judicial Conference report, or Bar Association recommendations

or discussion regarding the new Constitutional enactment. It

simply became part of the new Article 6 dealing with the

Judiciary in general, which created a unified court system,

consisting of 38 separate sections of which Article 6, Sec. 27 was

one.

In the absolute power thus vested in the Governor to appoint

and to re nove at will any judge designated by him to hold the

Extraordinary Special and Trial Term of the Supreme Court,

both Article 6, Section 27 of the New York State Constitution

and Section 149 of the Judiciary Law are unconstitutional and

void, on their very face, as inherently violative of the in-

dependence of the judiciary, and ihe Separation of Powers

guaranteed against encroachment by the Due Process Clause of

the Fifth and Fourteenth Amendments of the Constitution of the

United States and Article 1, Section 6 of the New York State

Constitution.

The fatal flaw of the statute and constitutional provision in

issue is that in its in-built potential of control by the Governor

over any judge appointed by him, it is unconstitutional per se.

The cardinal principle laid down by the United States

Supreme Court is that the constitutionality of a measure depends

not on the degree of its exercise but on its principle. (Providence

Bank y. Billings, 29 U.S. 514, 7 L.Ed. 399).

11

In Stuart v. Palmer, 74.N.Y. 183, 189, the Court long ago laid

down the seminal test of constitutionality:

‘The constitutional validity of law is to be tested, not by

what has been done under it, but by what may, by its

authority, be done.”

Again, in Rosalsky v. State, 254 N.Y. 117 (1930), the Court

Stated:

‘‘We measure the validity of statutes, not by what has

actually been done under cover of their provisions, but

by what with reason may be done. Stuart v. Palmer, 74

N.Y. 183, 30 AM Rep. 289; Matter of Richardson, 247

N.Y. 401, 421, 160 NY 655.”

In People v. Klinck Packing Co., 214 N.Y. 121, 138-139

(1915), the Court reiterated the applicable rule:

. we are to judge of a statute by what is possible

under it. In the absence of any guide it might very well

happen that an administrative officer with the best of

purposes would nevertheless be very fallible in the

execution of them.”’

Stuart v. Palmer, supra, has been quoted with approval by this

Court in Montana Co. v. St. Louis Mining & Co., 152 U.S. 160,

169 (1894); Farmer Grain Co. v. Langer, 273 F.Rep. 635, 647

(CA 8, 1921).

The doctrine of Separation of Powers in our constitutional

system of government by checks and balances is a ‘‘bulwark

against tyranny” (United States v. Brown, 381 U.S. 437 (1965).

Its fundamental tenets are embodied in the Due Process

Clause of the State Constitution, Article 1, Section 6, no less

than in the Fifth and Fourteenth Amendments of the federal

Constitution.

In Still v. Corning, 1S N.Y. 297, 303, the Court stated:

“The leading feature of the Constitution is the

separation and distribution of the powers of the

12

government. It takes care to separate the executive,

legislative and judicial powers, and to define their limits.

The executive can do no legislative act, nor the

legislature any executive act, and neither can exercise

judiciary authority "' Cooley's Constitutional

Limitations, 8th ed. Vol 1, p. 355.

Accord: Matter of Guden, 171 N.Y. 529, 531; People ex rel

Burby v. Howland, 15S N.Y. 270, 288.

The settled law is that a provision in a state constitution is

subject to the same statutory rules of construction, consistent

with the due process clause of the federal constitution, as any

state statute.

In Matter of Wendell v. Lavin, 246 N.Y. 115, 123, the New

York Court of Appeals declared:

“The same rules apply to the construction of a Con-

stitution as to that of statute law. (People ex rel Jackson

v. Potter, 47 N.Y. 375, pp. 379-380).”

Accord: Newell v. People, 7 N.Y. 9.

‘there is no liberty, if the power of judging be not

separated from the legislative and executive powers”.

(The Federalist, No. 78, A. Hamilton, Modern Library

ed. P 504). “Upon the state courts, equally with the

courts of the Union, rests the obligation to guard and

enforce every right secured by the Constitution.”

(Holohan v. United States, 294 U.S. at p. 113).

Accordingly, if Article 6, Section 27 of the New York State

Constitution. here in issue, is inherently offensive to the Due

Process Clause of the federal and state constitutions, it must be

invalidated as unconstitutional and void.

Mr. Justice Cardozo’s learned opinion in People ex rel. SL&T

Co. v. Extraordinary Term of the Supreme Court, 220 N.Y. 487.

and in Matter of Reynolds v. Cropsey. 241 N.Y. 389 _— both

cases involving a construction of the very statute in issue herein,

in its pre-amended form — emphatically attest to the fun-

13

damental constitutional questions propounded by the appellant

herein.

The gravely pernicious potentials of the statute in issue are

readily apparent.

The independence of the judiciary is automatically subjugated

to the control, whim and caprice of the Executive. The power to

hire and fire a judge puts the Executive implacably “in control of

judicial action” (People ex rel S.L. & T. Co. v. Extraordinary

Term, 220 N.Y. 487).

A judge so compromised would be inevitably impelled to tilt

the balanced scales of justice against any accused, if only to

curry the favor on the one hand, or avert the retribution of the

Governor, on the other. In a court of justice so heavily stacked

against the accused, with the Governor holding the strings of

both the judge and prosecutor, the elemental rights to a fair trial

are hopelessly compromised. No judge so situated could

reasonably maintain the balance true, despite the best of in-

tentions and the highest nobility of motive.

To expect any judge or court, so situated, to maintain an even

balance of judicial objectivity under these unique and ex-

traordinary circumstances, would be to strain for the fulfillment

of the impossible from any human being.

In re Murchison, 349 U.S. 133 (1965), the Court stated:

“A fair trial in a fair tribunal is a basic requirement of

due process. Fairness of course requires an absence of

actual bias in the trial of cases. But our system of law

has always endeavored to prevent even the probability of

unfairness. To this end no man can be a judge in his own

case and no man is permitted to try cases where he has

an interest in the outcome. That interest cannot be

defined with precision. Circumstances and relationships

must be considered. This Court had said, however, that

every procedure which would offer a possible temptation

to the average man as a judge ... not to hold the

14

balance nice, clear and true between the State and the

accused, denies the latter due process of law. “Tumey v.

Ohio, 273 U.S. 510, 532, 71 L.ed. 749, 758, 47 S.Ct.

437, 50 ALR 1243. Such a stringent rule may sometimes

bar trial by judges who have no actual bias and who

would do their very best to weigh the scales of justice

equally between contending parties. But to perform its

high function in the best way ‘justice must satisfy the

appearance of justice.’ Offutt v. United States, 348 U.S.

11, 99 L.ed. 11, 75 S.Ct. 11.’’ (Emphasis ours)

In United States v. Walter, 473 F.2d 136 (CA, D.C. (1972),

the Court noted:

‘‘The disciplined judicial mind should not be subjected

to any unnecessary strain; even the most austere intellect

has a subconscious.”

With the utmost deference and the highest respect and esteem

for the distinguished appellee Justice, the Hon. John M.

Murtagh, the extraordinary pressures subtly operative against

any judge so situated could not but have been reflected in the

conduct of trial in the cases before the Extraordinary Term of

the Supreme Court. The reported decisions of appellate

tribunals in corrective action graphically portray the

predicament in which defendants have been placed under the

unconstitutionally structured statutes at bar. e.g., People v.

Johnson, 4 App.Div.2d 123, 127 (1975); People v. Bell, 45

App. Div.2d 362, 364, affd by New York Court of Appeals (N. Y.

Times, Nov. 20, 1975; People v. Harding, 33 App.Div.2d 800

(1974); People v. Levy, 47 App.Div. 2d 12 (1975); People v.

Mackel, 47 App.Div.2d 209 (1975).

Granted that the appellee Justice has displayed commendable

judicial impartiality and fairness in several recently reported

cases on jurisdictional issues (Matter of Goldman, ——Misc.

2d——— (1975); People v. Geller, Misc. 2d——, New York

Times, Nov. 18, 1975, p. 61, the fact is nevertheless that this

indictment had been originally spawned against appellant under

color of the unconstitutional statutes in issue. Further, the

15

ultimate test of constitutionality is that the statute must be

judged ‘‘by what is possible under it” (Stuart v. Pa/mer, 74 NY

183, quoted with approval by this Court in Montana Co. v. St.

Louis Mining Co., 152 US 160, 169 (1894); Farmer Grain Co. v.

Langer, 273 F.Rep. 635 (CA 8, 1921) ).

That this question is so substantial as to require plenary

consideration by the Supreme Court of the United States for its

resolution is readily attested by the fact that the state statute in

issue is an identical replica of the tyrannical power exercised by

King George III over the colonial governments, through his royal

governors, by systematically appointing and controlling his own

judges and prosecutors. ‘‘He has made Judges dependent on his

Will alone, for the tenure of their offices,***” (Declaration of

Independence, July 4, 1776).

It matters not that the unfettered power thus vested in the

Governor springs from the highest motives in the rooting out of a

festering corruption within the criminal justice system. “Even

though the governmental purpose be legitimate and substantial,

that purpose cannot be pursued by means that broadly stifle

fundamental personal liberties when the end can be more

narrowly achieved.’’ (NAACP v. Alabama, 377 U.S. 288, 307).

United States ex rel. Monty v. McQuillan, 385 F.Supp. 1308

(EDNY 1974), affd. S16 F.2d 897 (CA 2, 1975), and People v.

Davis, 67 Misc.2d 14, cited by appellee Nadjari, are both totally

inapposite. (Motion to Dismiss, pp. 7-9). The issue presented in

these cases was strictly limited to the Governor’s prescribed

Statutory power to designate a particular judge under Section

149, subd. 1, Judiciary Law (App. 36), without more. No

challenge was made therein, however, to the Governor’s un-

constitutionally delegated power to terminate the assignment of

the justice appointed by him, by dictatorial fiat at any time, and

to appoint another justice in his place to hold the same term.

Again, appellee Nadjari misleadingly quotes the Cardozo

court in People ex rel. Saranac Land & Timber Co. v. Ex-

traordinary Term of Supreme Court, 220 NY 487, 492 (1917), as

follows: ‘Aside from the power to assign and remove the justice,

the Governor ‘has no power to do more’, and he ‘has not at-

tempted to do more’.’’ The fact is, however, that the power to

remove the justice was added to the statute in issue long after the

Cardozo court had rendered its decision in the Saranac case.

The appellee blandly asserts to this Court that ‘the additional

power of the Governor to terminate the assignment and name

another justice to hold the term is one of necessity, occasioned by

the possibility that a presently assigned justice may become

unable or unwilling to continue his position’’ (Motion to

Dismiss, p. 9). This is to disregard the critical fact that in no

other case is the Governor given the absolute judicial power to

play musical chairs with the assignment of judges of the

Supreme Court, a matter strictly reserved to the Appellate

Division alone under New York’s Judiciary Law (App. B, pp. 35-

36).

Appellee Nadjari erroneously contends that “‘the federal

separation of powers doctrine does not apply to the states’,

citing Dreyer v. Illinois, 187 US 71, 84 (1902). (Motion to

Dismiss, p. 10). In that case, however, this Court plainly stated:

‘‘Whether the legislative, executive and judicial powers

of a state shall be kept altogether distinct and separate,

or whether persons or collections of persons belonging to

one department may, in some respect to some matters,

exert powers which, strictly speaking, pertain to another

department of government, is for the determination of

the state."’ (Emphasis supplied)

In other words, Dreyer v. Illinois stands for the proposition

that a mere overlapping of some powers is not necessarily

violative of the separation of power doctrine. Said the Court:

“The true meaning is, that the whole power of one of

these departments should not be exercised by the same

hands ***"’ (Emphasis supplied).

In conferring upon the Governor the whole power to appoint

and to terminate the tenure of judges’ assignments, the en-

17

croachment by the executive over the judiciary has thereby

transcended all constitutional limits.

POINT II

SECTION 149, SUBDIVISION 2 OF THE

JUDICIARY LAW, IN SUBSTANTIALLY

DIMINISHING THE RIGHTS OF LITIGANTS

BEFORE THE EXTRAORDINARY TERM, IS

UNCONSTITUTIONAL AND VOID ON ITS FACE,

AS INHERENTLY VIOLATIVE OF THE EQUAL

PROTECTION OF THE LAWS AND DUE PROCESS

OF LAW.

Gravely compounding the evil potentials of Section 149

Judiciary Law, a further amendment of the same statute also

destroyed the equal protection of the laws for all litigants in the

Appellate Court by severely diminishing their pre-trial

procedural rights to a fair and impartial trial (cf. People ex rel.

S.L. & T. Co. v. Extraordinary Term, 220 N.Y. 487, per by

Judge Cardozo; Matter of Cropsey, supra).

Originally, every defendant at the bar of the Extraordinary

Term had the absolute right to present any pretrial motion, viz.,

to disqualify a judge for bias, to apply for a change of venue, to

waive a jury trial, to suppress illegal evidence, etc., to the Special

Term of the Supreme Court, rather than exclusively to the

Extraordinary Term.

Subsequently, however, the legislature amended Section 149

of the Judiciary Law, by enacting a new subdivision 2 (L. 1953,

Ch. 890), substantially diminishing the rights of litigants, as

follows:

‘2. A motion involving a matter pending before such

extraordinary special or trial term shall be made

returnable at such term, or, at the option of the moving

party, at a term of the appellate division of the supreme

18

court in the department in which such extraordinary

special or trial term is being held.”

However, the statute was once again amended by L. 1960, ch.

164. In place of the saving absolute ‘‘option” accorded criminal

defendants to make all motions returnable in the appellate

division in the supreme court, the new amendment massively

diminished the rights of litigants still further by substituting for

it the discretionary device of a justice of the uppellate division.

The amended statute in its present form, now reads as follows:

‘2. A motion involving a matter pending before such

extraordinary special or trial term shall be made

returnable at such term, except that, in the exercise of

discretion, a justice of the appellate division of the

supreme court in the department in which such ex-

traordinary special or trial term is being held may grant

permission for such motion to be heard at a term of such

appellate division.”” (App. p. 36).

In Roller v. Holly, 176 U.S. 398, 409, 44 L. ed. 520, 524, 20,

this Court held:

The right of a citizen to due process of law must rest

upon a basis more substantial than favor or discretion.”

Above all, this appellant, as all others similarly situated before

the Extraordinary Term, have been deprived of the fundamental

right to be tried by a judge randomly chosen. Appellant is now

compelled to stand trial before the Governor’s personally hand-

picked judge and hand-picked Special Prosecutor, both of whom

are summarily removable at the instance, will, whim, or caprice

of the Executive, in flagrant violation of the principle of

separation of powers. By comparison, all other defendants in the

regular criminal terms are entitled to assignment of judges

selected at random (Rule 751.5 Supreme Court Rules, Kings

County), and removable only by the Appellate Division, and no

other.

In net effect, under the amended statute aforesaid, a litigant is

absolutely restricted to the respondent Extraordinary Term

19

alone for vindication of his rights of due process to a fair and

impartial trial, save only for the limited right to apply to the

Appellate Division with respect to preliminary matters, subject

however, to the over-all discretionary right of a justice of the

Appellate Division to grant or withhold such permission (Section

149, subd. 2 Judiciary Law).

A defendant before any regular term of the Supreme Court,

however, would have the absolute right to move at Special

Criminal Term for disqualification of the presiding judge, for a

change of venue, or for dismissal of the indictment on due

process grounds. These fundamental rights are absolutely

denied to all defendants before the appellee court. Even the

fixation of excessive bail by the appellee Extraordinary Term is

not subject to habeas corpus relief before an independent justice

presiding at the regular Special Term of the Supreme Court, as

is accorded all other defendants in the regular criminal terms

(People ex rel. Feldman v. Warden, 45 App. Div. 2d 838 (ist

Dept., 1974).

In practical terms, particularly prejudicial to appellant, he

would be seriously hard put to avail himself of the fundamental

right of waiver of jury trial in the appellee court — especially

where, as here, the appellate division below had already

definitively determined from inspection of the Grand Jury

Minutes that ‘‘the theory underiying the charge of grand larceny

is thin and the proof in regard thereto quite tenuous.”’ [Matter of

Moritt v. Nadjari, 46 AD 2d 784 (2d Dept.). Accordingly, if the

ex parte evidence adduced before the Grand Jury by the appellee

Nadjari is of thrat meager quality, then clearly the trial evidence

to be adduced on behalf of the appellant would inevitably

require and justify a trial order of dismissal for legal in-

sufficiency of the evidence under New York’s Criminal

Procedure Law, Sec. 290.10.

Nevertheless, for the reason aforestated directly affecting the

independence and impartiality of the judiciary (Point I), the

appellant is now effectively foreclosed from a free choice of

waiver of jury trial in the appellee court under the unique cir-

cumstances herein presented.

Again, in sharp contrast to the fixed general rule in the ap-

pellate division that “a motion or proceeding will be deemed

submitted to the court without oral argument’, all other

defendants at the bar of the regular criminal terms of the

Supreme Court are by court rule granted the important right to

argue orally all contested motions. (Rules Sec. 670.3(b) Supreme

Court Rules Kings County, 22 NYCRR, Sec. 752.11). Here,

appellant had been denied a fair and equal opportunity to argue

his original motion to that Court submitted under color of

Section 149 subd. 2 of the Judiciary Law.

It will be noted that even in a meritorious application to

disqualify the presiding justice for bias or interest, there would

be no other justice to take his place, for there is but a single

judge appointed by the Executive to preside in the Appeiiee

Court, the Extraordinary Term of the Supreme Court. To

replace that justice for bias or interest would necessarily entail

that the Governor designate an alternate judge in his place by

new executive order in each such case, thus superimposing a

serious practical road block in the path of any defendant at the

bar of the Extraordinary Term, to the equal protection of the

laws, as compared to all other defendants within the jurisdiction

of the regular criminal terms of the Supreme Court.

As to the alternate discretionary right of any defendant to

apply to the Appellate Division for permission to file a pre-trial

motion or proceeding, authorized by Sec. 149 Judiciary Law,

subd. 2, it is hornbook constitutional law that a grant of

discretion is no fair or adequate substitute for the absolute right

accorded all other defendants in the regular criminal terms to

institute all pre-trial proceedings at an independent term.

_ (Roller v. Holly, 176 U.S. 398, 409).

It will be noted, in this connection, that although the Ap-

pellate Division had denied appellant's application to dismiss

the indictment for gross prosecutorial misconduct shocking to

the conscience, without a hearing, a complaint subsequently

filed by Judge Moritt under Title 42 USC 1983 for deprivation of

civil rights, pleading the identical acts alleged in the state court

21

proceedines hereinabove, was subsequently upheld by Chief

Judge Mishler in the U.S. District Court for the Eastern District

of New York, on Appellee Nadjari’s motion to dismiss. (Moritt v.

Nadjari, et al. ——F. Supp. —— August 27, 1975).

In sum, every litigant at the bar of criminal justice before the

appellee Extraordinary Special and Trial Term of the Supreme

Court is effectively deprived of the equal protection of the laws

accorded all other criminal defendants in the regularly con-

stituted terms of the Supreme Court.

The appellees contend that “the use of sound judicial

discretion is not uncommon to state or federal courts in setting

bail, imposing sentence or granting leave to appeal, or this Court

in granting certiorari.” (Motion to Dismiss, p. 12).

We respectfully submit, in answer, that since the normal

exercise of discretion is and should be universally applicable to

all criminal defendants alike, the absolute discretion vested in

the appellate division to grant or deny an applicatior to entertain

pretrial motions is intrinsically violative of appellant's right to

the equal protection of the laws accorded to all other defendants

of the Criminal Term of the Supreme Court, who are limited by

no such discretion in their right to pretrial relief.

POINT III

THE GOVERNOR’S SPECIFIC DESIGNATION OF

THE APPELLEE NADJARI TO MANAGE AND

CONDUCT ALL PROCEEDINGS IN THE EX-

TRAORDINARY TERM OF THE SUPREME

COURT RENDERED SECTION 63 EXECUTIVE

LAW AND EXECUTIVE ORDER NO. 58 UN.

CONSTITUTIONAL AND VOID, AS APPLIED,

UNDER THE DUE PROCESS CLAUSE OF THE

CONSTITUTION.

, The personal designation of the prosecutor by the Governor

infinitely compounded the threat against the independence of

the judiciary, by arrogating unto the Executive, likewise, the

constitutional functions of the quasi-judicial, independently-

elected office of appellee Attorney General of the State of New

York (Article S, Sec. 1 New York State Constitution), and

flagrantly violated the specific mandate of Section 63 of the

Executive Law of New York that the Attorney General ‘attend in

person, or by one of his deputies’’ before the Extraordinary

Term.

Section 63 Executive Law, implementive of and com-

plementary to Section 149 Judiciary Law aforestated, provides in

pertinent part as follows:

“Section 63. General Duties. The Attorney General

shall:

1. Prosecute and defend all actions and proceedings in

which the state is interested, and have charge and

control of all the legal business of the departments and

bureaus of the state, or of any office thereof which

requires the services of attorney or counsel, in order to

protect the interests of the state***.

2. Whenever required by the governor, attend in

person, or by one of his deputies, any term of the

supreme court or appear before the grand jury thereof

for the purpose of managing and conducting in such

court or before such jury criminal actions or proceedings

as shall be specified in such requirement***.” (Em-

phasis ours.)

Notwithstanding the explicit requirement contained in Section

63 Executive Law that the Attorney General “attend in person,

or by one of his deputies’’, the fact that the Governor personally

and officially directed the Attorney General to appoint the

appellee Nadjari is a matter of common knowledge of which the

Court may properly take judicial notice. (Hunter v. New York,

Ont. & West. RR Co., 116 NY 615; 20 Amer. Jur. Evid. Sec. 23:

By designating his own Special Prosecutor to manage and

conduct all proceedings in the court so controlled by the

Executive as aforesaid, the Governor has not only magnified the

potential dangers of Section 149 Judiciary Law to the in-

dependence of the judiciary and to the due process rights of an

accused, but has likewise rendered Section 63 Executive Law

and Executive Order No. 58 issued thereunder, unconstitutional

and void, as applied, under the Due Process Clause of the

Constitution.

The unchecked power vested in the Governor by Section 149

Judiciary Law to appoint ihe Justice presiding in the appellee

Court and to remove him at will, for any cause or no cause —

and, in the very context of such a controlled court, to sanction

the right of the Governor to hand-pick and control the

designation of a particular Special Prosecutor to manage and

conduct all proceedings therein — would tend to invite and

encourage the very tyrannical abuses practiced by the appellee

Nadjari at bar, not only against this appellant but against a host

of others similarly situated, as reflected in a proliferating

number of reported cases.

It is no mere coincidence that, under goad of a court structure

so wholly controlled by the Executive, that an abnormal number

of defendants at the bar of the appellee court have been com-

pelled to interpose special defenses charging appellee Nadjari

with wilful entrapment, subornation of perjury, prosecutorial

misconduct shocking to the conscience, refusal to arraign

defendants at any time following arrests, lack of jurisdiction,

and notoriously unfair trial tactics. (See United States v. Archer,

486 F.2d 670 (CA2); People v. Steinman, 44 App. Div. 2d 839

(2d Dept. 1974); Matter of Klein v. Murtagh, 44 App. Div. 2d

465 (2d Dept. 1974); People v. Mackel, 47 App.Div. 2d 209

(1975); Matter of Goldman, Misc.2d—— (1975); People v.

Geller, Misc. 2d , N.Y. Times, Nov. 18, 1975, p. 61);

People v. Levy, 47 App.Div.2d 12 (1975); People v. Bell, 45

App. Div. 2d 362 (ist Dept.); People v. Johnson, 46 App.Div. 2d

123, 127 (1975); Lopez v. Nadjari, U.S.D.C., E.D.N.Y. 1974

(Civil suit for illegal wiretapping of telephone conversation

between attorney and client); People v. Harding, 44 App.Div.2d

800 (ist Dept).

In People v. Nigrone, 46 App. Div. 2d 343 (2d Dept. 1975),

the Court unequivocally remarked of appellee Nadjari: “Such a

perversion of the criminal justice system by an overzealous

prosecutor is illegal, outrageous and intolerable and we con-

24

demn it.”’ In similar vein, federal Judge McMahon

recently characterized appellee Nadjari’s mispractices as ‘‘foul,

illegal and outrageous.”’ (Rao v. Nadjan, —— F Supp ——,

USDC, SD N.Y. (October 2, 1475).

In sum, we respectfully submit that Section 63 Executive Law

and Executive Order No. 58 are unconstitutional and void, as

applied, under the Fifth and Fourteenth Amendments of the

Constitution of the United States and Article 1, Sec. 6 of the New

York State Constitution.

A statute may be deemed unlawful and unconstitutional, as

applied. (Steffel v. Thompson, 415 US 452, ff. 7, (1974);

Younger v. Harris, 401 US 37; Samuels v. Mackell, 401 US 66;

Sands v. Wainwright, 491 F. 2d 417 (CA 5, 1973).

The appellees Nadjari, as well as the Attorney General, have

studiously avoided denying or controverting Appellant’s due

process contention that the Governor’s personal designation of

Nadjari to manage and conduct all proceedings in the un-

constitutionally structured court likewise rendered Section 63

Executive Law and Executive Order 58 unconstitutional and

void, as applied.

The appellees glibly fob off this contention by merely stating

that any argument “that the Governor's designation of the

Attorney General was improperly executed is again an attack on

an act, not a statute.’’ (Motion to Dismiss, p. 13).

The fact is, however, as alleged in the Article 78 state

proceeding below, the Governor had in fact personally

designated the appellee Nadjari as a Special Deputy Attorney

General to manage and conduct the proceedings in the

Governor’s own handpicked court—in flagrant violation, not

only of the independence of the judiciary, but also of the in-

dependence and autonomy of the constitutionally-elected office

of Attorney General. If so, then appellant’s right to due process

of law has been immeasurably compromised.

Neither appellee Nadjari nor the Attorney General have

TREES Si

candidly faced up to this central issue in their subriission either

to this Court, or in the State courts below.

In Field v. Boyle, $03 F2d 774 (1974), the Court s:ated:

‘“**® due process questions under the Federal

Constitution may be presented either by the failure of a

state to follow its own rules of law or by state rules of law

themselves serving as a deprivation of due process”.

This Court has held that:

“The history of American freedom is in no small

measure the history of procedure.” (Malinski v. New

York, 324 U.S. 401, 419)

POINT IV

THE INDICTMENT IS UNCONSTITUTIONAL AND

VOID AS EX POST FACTO.

To permit a prosecutor to engage in an ex post facto

prosecution of this nature would directly undermine the fun-

damental independence of the judiciary with respect to the

traditional official relationship subsisting between a judge and

his law assistant in the regular performance of judicial duties,

upon which this appellant and all other judges in the unified

court system have relied. If this appellant be rendered

retroactively vulnerable to the harassment and threat of a

criminal prosecution over a matter strictly within the exclusive

jurisdiction of the judiciary, then every judge or his law assistant

in the land could be no less in jeopardy at the hands of a wilful

and malicious prosecutor. Every judge and his law assistant

would be hostage to the design of an ambitious, overzealous or

tyrannical prosecutor. A state cannot, by judicial decision or

otherwise, remove any of its activites from the inhibitions of the

14th Amendment. (City of St. Petersburg v. Alsup, 238 F.2d

830, cert. den. 353 US 922).

A law that makes an action done before its enactment

criminal, and which was innocent when done, is ex post facto.

Calder v. Bull, 3 U.S. 386 (1798); Bouie v. Columbia, 378 U.S.

347, 353 (1964); United States v. Nill, 518 F2d 793 CA 5S, 1975).

The criminal statutes of grand larceny and conspiracy, as here

applied against appellant, are clearly invalidly retroactive and an

ex post facto exercise of jurisdiction. Williams v. United States,

179 F.2d 644, aff. 341 US 70; Love v. Fitzharris, 460 F2d 382,

vacated 409 US 1100).

The indictment procured by the appellee Nadjari against

appellant usurped the exclusive jurisdiction of the administrative

supervision of the courts, as provided for by Article VI, Section

28 New York State Constitution, and as implemented by Article

7A Judiciary Law, more particularly Sections 212 and 222

thereof relating to “personal practices, title structure, job

definition, classification, qualifications, appointments,

promotions, transfers, leaves of absence, resignations and

reinstatements, performance rating, sick leaves, vacations, time

allowancv’s and removal of non-judicial personnel of the unified

court system’’, and in accord with long-standing tradition ‘and

standard practice thereunder, upon which the Appellant, Judge

Moritt, relied.

Pursuant to the mandate of the Constitution, the legislature,

enacted laws implementing the Constitution with Article VII A

Judiciary Law, more particularly Section 212 which provides:

‘The administrative board shall have the authority and

responsibility for the administrative supervision of the

unified court system. In discharge of that authority and

responsibility the administrative board, in consultation

with the judicial conference, may adopt, amend, rescind

and make effective standards and policies for general

application throughout the state,***”

Section 212 of the Judiciary Law, subd. 1, provides in part:

‘1. Personnel practices, title structure, job definition,

classification, qualifications, appointments,

a asm OTE ete

SOIT oes

27

promotions, transfers, leaves of absence, resignations

and reinstatements, performance rating, sick leaves,

vacations, time allowances and removal of non-judicial

personnel of the unified court system. *** Before

adopting new standards and policies which affect the

non-judicial personnel, the administrative board shall

give notice of the proposed new standards and policies

and shall give notice of and hold a hearing at which

affected employees or their representatives shall have the

Opportunity to submit criticisms, objections, and

Suggestions relating to such proposed standards and

policies.”

The administrative board has placed only one restriction upon

the appointment of personal assistants (secretary) to the justices,

to wit, that said personal assistants shall be attorneys, but has

not imposed any other requirements or restrictions as set forth in

subdivision I of Section 212 Judiciary Law.

Appellant relied upon the law as aforestated in engaging

Theodore Mann, an attorney, as his secretary and complied fully

with its mandates.

In Matter of Spindel v. Dudley (unreported), Supreme Court,

New York County, New York Law Journal, June 4, 1974, the

Court stated:

‘For the nature of the Secretary's work is wholly

defined by the individual Justice, and is to a large extent

unrelated to a five-day week, eight-hour schedule. The

Secretary may be as much on the job when at home,

actually ill, but reading and evaluating briefs, papers in

the court file, decisions and precedents, or conferring

with the Justice by telephone, as when he is physically

present in chambers.”’

Indeed, in conclusive confirmation of appellant’s contention

herein, the appellee Nadjari had publicly declared and

acknowledged that the employment of alleged ‘‘no-show Law

Secretaries to Justices of the Supreme Court “‘is not an indictable

crime’’ with respect to the “‘rip-off’ salaries paid to them,

because ‘‘we need new legislation for that.”” (New York Daily

News, December 19, 1974).

POINT V

THE CONSTITUTIONAL QUESTIONS PRESEN-

TED IN THIS APPEAL ARE SUBSTANTIAL.

As is plainly manifest, each of the constitutional issues

presented in this appeal are substantial (Zucht v. King, 260 US

174, 177; Rule 15(e) Rules of the Supreme Court.

in dismissing the appeal taken as of right under New York law

pursuant to Civil Practice Law and Rules S601(b), on the

purported ground that ‘no substantial constitutional question is

directly involved’’ and in summarily denying the appellant leave

to appeal, the Court of Appeals failed to adhere to its standard

precedents laid down in its own prior decisions in People ex rel

S.L. & T. Co. v. Extraordinary Term of the Supreme Court,

supra, Cardozo, J. and in Matter of Reynolds v. Cropsey, supra,

construing the very statute here in issue in its preamended form.

It was after the Cardozo decision in Saranac that the legislature

made the statute repugnant to the Constitution by enacting new

legislation allowing the Governor to remove as well as appoint

the special judge of the Governor's own creation. As so recon-

Stituted, it is self-evident that the legislative authorization

granted to the Governor to terminate the assignment of a justice

appointed by him at will, would never have survived con-

stitutional muster of the Cardozo court.

With all due deference and the utmost respect for the New

York Court of Appeals, a state court cannot so coristrue a state

statute as to render it obnoxious to the Federal Constitution.

(Arizona Employer Liability Cases, 250 US 400; Crew Levick Co.

v. Comm. of Pa., 245 US 292). The Supreme Court of the United

States is not bound by the determination of the New York Court

of Appeals that the constitutional questions are not substantial,

SE cence eee ee sent

RSE WEMNPT Se foie. ee ee ee

but must reach a conclusion independent of the state court.

(Appleby v. City of New York, 271 U.S. 364; Napue v. Illinois,

360 US 264; Brookhart v. Janis, 86 S. Ct. 1245; Brooklyn

Savings Bank v. O'Neil, 324 U.S. 697).

The judgment appealed from herein is a final judgment within

the meaning of 28 U.S.C. 1257 (Gospel Army v. Los Angeles,

331 U.S. S43, 48; Dept. of Banking v. Pink, 317 U.S. 264, 268;

Richfield Oil Corp. v. State Board, 329 U.S. 69, 72).

Notwithstanding that the constitutional validity of the state

Statutes here in issue are now technically pending before the

appellees Judge Murtagh and his Extraordinary Term of the

Supreme Court as aforestated, it is plain that appellant's

contentions as to the facial invalidity of Section 149 Judiciary

Law go to the very jurisdiction of the unconstitutionally struc-

tured Court. If this statute is inherently violative of the in-

dependence of the judiciary, then the appellee Court is utterly

without jurisdiction or legal competence to resolve the issue of

constitutionality or otherwise as a legally constituted Court

(Oakley v. Aspinwall, 3 N.Y. 547; Wilcox v. Royal Arcanium,

210 N.Y. 370, 377; People v. Whitridge, 144 App. Div. 493

(N.Y. Ist Dept). The one and only Court properly exercising

jurisdiction or legal capacity was the Appellate Division of the

Supreme Court below, to which appellant had vainly addressed

the proceeding appealed from herein.

In practical terms as well, it would be patently incongruous to

beseech the appellees Judge Murtagh and Extraordinary Term

of the Supreme Court for a ruling which would enseal the in-

validity of the Court's own very existence, and pronounce its own

nullity as a legally constituted court; **There can, of course, be

no valid prosecution and conviction for crime unless the court in

which the prosecution is instituted or carried on is legally created

and constituted, or is at least a de facto court.” (22 Corpus Juris

Secundum 108, pp. 299-300).

30

CONCLUSION

The motion to dismiss the appeal should be denied. The

constitutional questions presented herein are so substantial and

are of such grave public importance as to require plenary

consideration with briefs on the merits and oral argument for

their resolution.

Respectfully submitted,

AARON NUSSBAUM

Counsel for Appellant,

Office & P.O. Address

16 Court Street—Suite 1505,

Brooklyn, N.Y. 11241

November 20, 1975

1. EDWARD POGODA

Otfice & P.O. Address,

SO Court Street

Brooklyn, N.Y. 11201

of counsel.